A Secretary of State for Home Department

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In light of the legal theory below, critically assess the judgements in A v Secretary of State for Home Department [2004] UKHL 56. What, if anything can the judgements tell us about legal theory? The question posed here provides a remarkable range of issues that are available for analysis by means of legal theory. The legal, political, social and moral constructs that provide the underpinning to the various approaches taken by the House of Lords in A v Home Secretary[1] are not capable of a simple pigeon holing into a defined category. It is submitted that the most fulsome analysis of A v Home Secretary is achieved through the use of positivist theory to examine all of the opinions contained within the judgement. The positivist approach of H.L.A Hart as developed and advanced through his own writings and those of subsequent contributors and commentators, is employed to establish the necessary analytical framework. Where necessary, other legal theories are employed to explain distinct features of the judgement, particularly the relationship between the Lords’ opinions and the application of the rule of law. The Anti-terrorism, Crime and Security Act[2] (‘the Act’) is a clear manifestation of positive law principles. The terrorist threat advanced by al-Qaeda that exploded in the September 11, 2001 attacks in the United States had been rumbling throughout the Western world since the 1980s. The threat to nations such as Canada[3] and the UK was perceived to be more acute due to the strong alliances that each nation had with the United States. The Act was an amendment of legislation passed in 2000 in the UK[4] in response to this rising threat. Further, it is of some significance that the UK had extensive experience with terrorist incursions primarily arising from the conflict in Northern Ireland; those domestic threats had also been the subject of legislation that imposed limits on what were otherwise civil liberties.[5] These background points are of significance because the UK had an unfortunate domestic history with Irish-based terrorism that provided its government with a level of experience and insight into terrorist activities. The Act possesses the following distinct features:

  1. the power to arrest suspected terrorists
  2. the power to deport non-UK nationals who are suspected terrorists
  3. the power to detain those non-UK terrorists who could not be deported without breach of European and International conventions[6]

The UK government was permitted to derogate from the provisions of the Human rights Act and the ECHR regarding the right to trail and the right to challenge detention as the circumstances of the terrorist threat constituted a public emergency and exceptional circumstance. [7] The battle lines were clearly drawn by the time the present appeal was heard in 2004, as all appellants were non-UK nationals; none were charged with a criminal offence; none were likely to be charged;

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